. . . because much of the content relates both to Washington, D.C., and "outside the beltway" -- the heartland, specifically Iowa -- and because after going from Iowa to Washington via Texas and California I subsequently returned, From DC 2 Iowa.

Thursday, December 26, 2013

We can learn more from some recent reports of Pope Francis' activities than what appear to be this Pope's quite sincere concerns and commitments to improving the lot of the poor, and those adversely affected by the consequences of war. Consider the following:

"Pope Francis, celebrating his first Christmas as Roman Catholic leader, on Wednesday [Dec. 25] called on atheists to unite with believers of all religions and work for 'a homemade peace' that can spread across the world. . . . He said that people of other religions were also praying for peace, and - departing from his prepared text - he urged atheists to join forces with believers. 'I invite even non-believers to desire peace. (Join us) with your desire, a desire that widens the heart. Let us all unite, either with prayer or with desire, but everyone, for peace, he said, drawing sustained applause from the crowd.'"

__________

"Pope Francis washed and kissed the feet of a dozen inmates at a juvenile detention center in a Holy Thursday ritual that he celebrated for years as archbishop and is continuing now that he is pope. Two of the 12 were young women . . .."

__________

"Pope Francis announc[ed] that . . . 'the time has come to abandon all intolerance. . . . Even atheists acknowledge the divine. . . . The church no longer believes in a literal hell where people suffer. . . . All religions are true, because they are true in the hearts of all those who believe in them. . . . Our church is big enough for heterosexuals and homosexuals, for the pro-life and the pro-choice! For conservatives and liberals, even communists are welcome and have joined us. We all love and worship the same God. . . . [I]t is my hope that we will have a woman pope one day. . . . Racism today is the ultimate evil in the world. . . . [T]hose who would dare to turn immigrants away, be they legal or undocumented, turn their backs on Christ himself! . . . [B]ecause Muslims, Hindus and African Animists are also made in the very likeness and image of God, to . . . reject them to is to reject God and the Gospel of Christ.'"

__________

"Three homeless men [who] live on the street in the Rome neighborhood just outside the Vatican's walls . . . helped Pope Francis celebrate his 77th birthday Tuesday [Dec. 24] [when they] were invited . . . to attend the Mass, which Francis celebrates daily at the hotel where he lives on Vatican City grounds. [He] also invited his household help to join him in a 'family-like' atmosphere, and he spoke of them one by one during his homily."

__________

In an interview with uCatholic, Archbishop Konrad Krajewski, who serves as 'Almoner of His Holiness,' implied that Pope Francis may be sneaking out of the Vatican at night to personally give money and food to the homeless citizens of Rome. . . . [Krajewski commented} that Francis used to do exactly that as archbishop of Buenos Aires, before he was elected pope. . . . 'As archbishop of Buenos Aires, when he was known as Cardinal Jorge Mario Bergoglio, the future pontiff would go out at night ... to find people, talk with them, or buy them something to eat. He would sit with them and eat with them on the street.' . . . [A]n anonymous source in the church [said] that 'Swiss guards confirmed that the pope has ventured out at night, dressed as a regular priest, to meet with homeless men and women.'”

__________

A Pope, any Pope, is in many ways one of our few world leaders who is given -- or can simply seize -- an ability to speak his or her mind, not only, in Pope Francis' case, to his 1.2 billion followers, but to more billions beyond. When he chooses to use that opportunity to address problems of poverty, inequality and greed, war and peace, appealing to our better angels, he can provide a moral and ethical beacon for all of humankind. And because he communicates primarily, or at least as much, by his actions as by his words, he truly has our attention. (I will leave for another day Church positions he has neither addressed nor given any indication of a likelihood to change.) So, yeah, I'm a fan.

So what more can we learn from these stories beyond what they tell us regarding the character and style of this Pope?

They tell us something about the extent to which "believing is seeing;" that is, what we believe, or want to believe, can have a significant influence on what we perceive.

For Pope Francis fans, like myself, each of those quotations, above, all taken from published sources, has an air of plausibility about it. What he has done so far on behalf of the poor, peace, and opening up the Church has been so mind altering that nothing someone claims he has done seems impossible in that context.

But, alas, two of those five reports are false.

If you haven't already guessed which ones they are, they are repeated at the bottom of this blog essay with their sources and rebuttals.

Snopes.com is a wonderful online service for checking the truth of the "urban legends, folklore, myths, rumors, and misinformation" that circle the global Internet each day. It was particularly useful when the anti-President-Obama forces were circulating false accusations regarding his faith, American citizenship, and anything else they could come up with. See, "Snopes and 'What We Know That Ain't So,'" Aug. 2, 2012.

Our Republican friends (yes, we have some) would pass such charges along to their e-mailing lists, believing any bad news about Obama as readily as I believe any inspiring news about Pope Francis. We'd usually check them out with Snopes, and like as not find that they were totally false. Sometimes we'd refer the sending party to the Snopes report, and other times we'd decide it was hopeless.

But the point is not about Republican assaults on our President. The point is that we're all subject to such manipulation. There is some research and data on this. Even those trained and working in the sciences are significantly more likely to make accurate mathematical calculations when the data supports their hypotheses than when it does not.

What this Pope and Snopes have shown me is that the manipulation we experience from our religious, political and ideological beliefs and convictions is not limited to our disinclination to critically evaluate assertions regarding people and things that we hate. They can also manipulate our judgment when evaluating positive assertions about the people and things we love or admire.

Now here is what Paul Harvey would have called, "the rest of the story."

__________

"Pope Francis, celebrating his first Christmas as Roman Catholic leader, on Wednesday [Dec. 25] called on atheists to unite with believers of all religions and work for 'a homemade peace' that can spread across the world. . . . He said that people of other religions were also praying for peace, and - departing from his prepared text - he urged atheists to join forces with believers. 'I invite even non-believers to desire peace. (Join us) with your desire, a desire that widens the heart. Let us all unite, either with prayer or with desire, but everyone, for peace, he said, drawing sustained applause from the crowd.'"

"Pope Francis washed and kissed the feet of a dozen inmates at a juvenile detention center in a Holy Thursday ritual that he celebrated for years as archbishop and is continuing now that he is pope. Two of the 12 were young women . . .."

"Pope Francis announc[ed] that . . . 'the time has come to abandon all intolerance. . . . Even atheists acknowledge the divine. . . . The church no longer believes in a literal hell where people suffer. . . . All religions are true, because they are true in the hearts of all those who believe in them. . . . Our church is big enough for heterosexuals and homosexuals, for the pro-life and the pro-choice! For conservatives and liberals, even communists are welcome and have joined us. We all love and worship the same God. . . . [I]t is my hope that we will have a woman pope one day. . . . Racism today is the ultimate evil in the world. . . . [T]hose who would dare to turn immigrants away, be they legal or undocumented, turn their backs on Christ himself! . . . [B]ecause Muslims, Hindus and African Animists are also made in the very likeness and image of God, to . . . reject them to is to reject God and the Gospel of Christ.'"

"Three homeless men [who] live on the street in the Rome neighborhood just outside the Vatican's walls . . . helped Pope Francis celebrate his 77th birthday Tuesday [Dec. 24] [when they] were invited . . . to attend the Mass, which Francis celebrates daily at the hotel where he lives on Vatican City grounds. [He] also invited his household help to join him in a 'family-like' atmosphere, and he spoke of them one by one during his homily."

In an interview with uCatholic, Archbishop Konrad Krajewski, who serves as 'Almoner of His Holiness,' implied that Pope Francis may be sneaking out of the Vatican at night to personally give money and food to the homeless citizens of Rome. . . . [Krajewski commented} that Francis used to do exactly that as archbishop of Buenos Aires, before he was elected pope. . . . 'As archbishop of Buenos Aires, when he was known as Cardinal Jorge Mario Bergoglio, the future pontiff would go out at night ... to find people, talk with them, or buy them something to eat. He would sit with them and eat with them on the street.' . . . [A]n anonymous source in the church [said] that 'Swiss guards confirmed that the pope has ventured out at night, dressed as a regular priest, to meet with homeless men and women.'”

Tuesday, December 17, 2013

UPDATE: Today [Dec. 27] another U.S. District Court's decision (ACLU v. Clapper) is being described as contrary to the District Court decision that prompted this original blog essay (Klayman v. Obama). (See the bottom of this blog essay for citations and links.)

To characterize these two opinions as being opposite, or in conflict, with regard to the Fourth Amendment and the Supreme Court's decision in Smith v. Maryland, 442 U.S. 735 (1979)(discussed in the original blog essay, below), is in my opinion to fail to grasp the significance of the sub-head on that blog essay ("When Difference of Degree Becomes Difference of Kind"). (On the other hand, if their respective U.S. Court of Appeals both affirm, or both reverse, these lower court opinions, there will then be a sufficient "conflict in the circuits" to give
the Supreme Court that justification for taking the cases, if it wishes, given the conflict in their ultimate outcomes.)

Both judges agree that what the NSA is doing implicates the Fourth Amendment. They agree on the wording of the Fourth Amendment. They both agree that they need to deal with the Smith case. They both agree regarding what the facts were in Smith. They both agree as to the "holding" of Smith. They both agree that it is the Supreme Court, not U.S. District Court judges, that should be deciding whether to overrule Supreme Court opinions or not (Judge Pauley expressly; Judge Leon we can assume). Where they disagree is whether the facts and holding of Smith control the outcome of the facts before those courts in Klayman (Judge Leon) and Clapper (Judge Pauley).

Judge Pauley's sketchy and conclusory Fourth Amendment discussion is primarily limited to portions of pp. 42-44 in his 54-page opinion. He argues, in effect, that "telephone meta data (1979)" is the same as "telephone meta data (2013)," 34 years and a technological and surveillance revolution later.

Judge Leon noted the Supreme Court's struggling with the impact of technology on Fourth Amendment rights. As I described Judge Leon's analysis, below, "[in] U.S. v. Jones (2012), . . . the Supreme Court distinguished the facts of that case (using a GPS device to trace Jones' movements for a month, which it found violated his "reasonable expectations of privacy") from U.S. v. Knotts (1983) (an earlier case in which the use of lesser technology, for a shorter time, was found acceptable)."

"Aha," Judge Pauley seems to have said to himself with regard to Jones, before writing in response to Judge Leon: "But the Supreme Court did not overrule Smith." To which he adds, quoting from another Supreme Court decision, "[T]he Court of Appeals should . . . leave[e] to th[e Supreme] Court the prerogative of overruling its own decisions."

Of course, both of these assertions are irrelevant if no court is engaged in "overruling" anything.

What Judge Pauley fails to note is (1) as I asked and then answered, below, "Has Judge Leon 'overruled' Smith? Not really. He has neither the power nor the need to do so. He is simply saying 'the surveillance program now before me is so different from a simple pen register that Smith is of little value in assessing whether the Bulk Telephony Metadata Program constitutes a Fourth Amendment search . . ..,'" and (2) that the Supreme Court may have been using the same analysis in U.S. v. Jones as Judge Leon was using in Klayman. That is, the Court's failure to overrule Smith in Jones could mean either of two things: (a) it could have, as Judge Pauley believes, failed to overrule Smith because it believed it was both still good law and was controlling of facts such as those before the District Courts in Klayman and Clapper, or (b) it could have applied Judge Leon's reasoning, and failed to overrule Smith because there was no valid reason to apply Smith's 1979 "apples" to Jones's 2013 "oranges." The holding of Smith, limited as it must be to its facts, is simply irrelevant in addressing the vastly different facts before the courts in Klayman and Clapper. I believe that (b) is the far more likely explanation.

Much appellate court practice, and the writing of appellate court opinions, turns on "distinguishing" cases -- as first year law students soon discover. Both Smith and Knotts can remain good law -- in situations involving no more than the limited facts they presented -- without applying them to cases involving the very different facts in Klayman and Clapper. That does not mean that they have been "overruled." They have simply been limited to their facts; they have been "distinguished."

It may very well be that Judge Pauley also could have found Smith inapplicable to the facts in Clapper and still reached the same conclusion. But he did not.

Judge Leon found the Smith decision . . . inapplicable to a daily, indiscriminate sweep of hundreds of millions of phone records. Judge Pauley . . . said its logic still applied.

Judge Pauley’s opinion is perplexing in its near-total acceptance of the claim by the government that it almost always acts in accordance with the law . . . that shows an alarming lack of skepticism . . . in light of the testimony of James Clapper Jr., . . . who falsely [said] the N.S.A. was not collecting any [data on] millions of Americans.

It is also incorrect to say, as Judge Pauley does, that there is “no evidence” that the government has used the phone data for anything other than terrorism investigations. An inspector general . . . revealed at least a dozen instances in which government employees used the databases for personal purposes."

What follows, below, is what I wrote Dec. 17 regarding Judge Leon's Klayman decison:

__________

When Difference of Degree Becomes Difference of Kind

Wolfgang Schmidt, a one-time lieutenant colonel in the former East German secret police and security/spy agency has said of our NSA, "'You know, for us, this would have been a dream come true.' . . . [H]is department was limited to tapping 40 phones at a time, he recalled. . . . He finds breathtaking the idea that the U.S. government receives daily reports on the cellphone usage of millions of Americans and can monitor the Internet traffic of millions more. 'So much information, on so many people,' he said." Matthew Schofield, "Memories of Stasi color Germans’ view of U.S. surveillance programs," McClatchy Washington Bureau, June 26, 2013.

He makes an important point: "a difference to be a difference has to make a difference." A difference of degree may be a difference that makes no difference. A difference of kind does make a difference. . . .

When the Stasi's wiretapping ability went from one wiretap to 40, that was a difference. It made a difference. But not that much difference. You clandestinely listen in on one person's conversations, you listen in on 40. But when the NSA goes from a constitutional presumption of one search warrant at a time, for one person at a time, with probable cause, approved by a reviewing judge, to a general search warrant that entitles them to spy on every American simultaneously, just because they have the technology that makes it possible, that is a difference that makes an enormous difference.

Takeaway: Thirty-four years ago the Supreme Court said it was OK for law enforcement to get one person's phone records over a short time without using a search warrant (Smith v. Maryland); Federal Judge Leon rules that times and technology have changed enough that Smith no longer justifies NSA's sweeping, constant collection of all Americans' phone records.

At least one federal district judge has now declared the National Security Agency's (NSA's) surveillance of our cell phone usage ("metadata") to be a violation of our Constitutional, Fourth Amendment rights (Klayman v. Obama).

Since The Guardian broke the Snowden revelations earlier this year, there have been a number of essays in this blog regarding the issues. [For links to the opinion, related stories, and prior blog essays, see the bottom of this blog essay.]

Let's start withe the language of the Fourth Amendment: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. It was a response, in part, to the British use of so-called "general search warrants."

[G]eneral search warrants authorized the British to search whomever they wished, wherever they wished, whenever they wished, for whatever they wished, with or without any reasonable basis for suspicion of wrongdoing. No specific search warrant. No identified person or place. No "oath or affirmation" of the "probable cause." . . .

[T]he NSA’s surveillance of the American people today is the electronic equivalent of one of the grievances that drove our founding fathers to the revolution we commemorate every July 4th -– those British “general search warrants.”

The NSA is engaged in the unreasonable search of all of us, without even a suspicion we have done anything wrong, let alone probable cause, without specifying where they will look or what they are looking for. And so it is that, 224 years later, an ever-increasing number of Americans -– now nearly 50% -- again believe that government surveillance has gone too far, notwithstanding the threats of terrorism.

A prohibition on "unreasonable searches" requires not one, but two, findings: (1) that the search was unreasonable, but also (2) that there was, in fact, a "search." [Moreover, the person complaining must have had both (a) an "expectation of privacy," and (b) one that most people would consider to have been "reasonable."]

For example, . . . Most people would not expect that which they have left in plain sight from the street would be legally protected from being seen by passersby. And if they did have such an expectation, most people would not consider that expectation to have been reasonable.

So far, OK. But we're left with a couple of problems. (1) In a world of ubiquitous surveillance video cameras, mail covers, collection of all phone call meta-data, and comparable intrusions on privacy does a "reasonable expectation of privacy" provide us any protection? (2) The courts have said that when you give information to a third party, such as a bank, phone company, or Internet service provider, you thereby lose any expectation of privacy.

This is the legal argument of the businesses that are collecting information about our lives, and the government agencies that then retrieve the information from them (information that the government might not have been able to acquire constitutionally without their involvement).

It is my opinion that both problems (ubiquitous surveillance and third-party transactions) require rethinking in this high tech age. [1] If you hold information you consider to be private, and you turn it over to a newspaper reporter (who makes no promise of protecting your privacy), you can't really complain when it ends up in the local paper. [2] On the other hand, we do protect the privacy of information you hand over to your doctor, lawyer, or cleric. [3] [T]here needs to be a third category these days. The information you necessarily have to provide a credit card company, for example, may not be entitled to the protection accorded information you give your doctor. But neither, in my opinion, should it be accorded no more protection than what you hand over to a newspaper reporter, neighbor, or colleague. I believe there is, in fact, a reasonableness in demanding a level of trust in our relationships, business or otherwise, that are necessities in our economy -- such as banking and phones. We need these services. We are not gratuitously handing them private information; it is a necessity that we do so in order for them to provide the service. It is given to them for a specific and limited purpose.

The Supreme Court needs to rethink the Fourth Amendment's protection of our privacy in a post-cyber world. The mere fact that today's technology means that no American can have a "reasonable expectation of privacy" anywhere, at any time, requires that standard -- and its deadly presumption regarding records shared with third parties -- be discarded.

It's always reassuring to have one's instincts and intuition proved correct. As expose after expose hit the media earlier this year, it seemed to me that what the NSA was doing was a violation of both the letter and the spirit of the Fourth Amendment. It was troublesome that those charged with congressional oversight of the NSA, and those within the Obama Administration, of all people, thought -- or at least were saying -- that there was something wrong with the analysis that I, and others, had put forward.

Now there is at least one federal judge who thinks we got it right. There will be more federal judges -- and ultimately Supreme Court justices -- to express their own views on the issues. Undoubtedly, some will disagree with Judge Leon. But his analysis is a strong beginning.

The plaintiffs sought a preliminary injunction prohibiting the NSA's collection of their phone metadata, relying on an Administrative Procedure Act (APA) remedy and the violation of their constitutional rights under the Fourth Amendment. The judge concludes they have the requisite "standing" to proceed as parties, that Congress has precluded his jurisdiction to address their APA claim, but that it has not precluded his jurisdiction to consider their constitutional claim, for which they have met the threshold requirements justifying a preliminary injunction, which he grants -- what non-lawyers would describe as in effect telling the NSA to "stop it." Judge Leon then adds, "However, in view of the significant national security interests at stake in this case and the novelty of the constitutional issues, I will stay my order pending appeal." So, on the one hand, the plaintiffs won; on the other hand, they will not enjoy what they have won until the case has weaved its way through an appeal to the U.S. Court of Appeals for the D.C. Circuit -- and possibly the United States Supreme Court.

A discussion of these issues, and the FISA law and procedures, consume the first 43 pages of the opinion.

At that point, under the heading, "The Collection and Analysis of Telephony Metadata Constitutes a Search," is where the constitutional analysis begins -- one that accords with the earlier analysis of myself and others.

Here's some brief background. The Fourth Amendment prohibits the government from engaging in "unreasonable searches," thereby logically requiring two findings: (1) that there was a "search," and (2) that it was "unreasonable." The Supreme Court once gave the Fourth Amendment something of a anti-trespass interpretation, as it only keeps Americans "secure in their persons, houses, papers, and effects." (Tapping a defendant's phone, without a warrant, while at a distance from his property, was found not to violate the Fourth Amendment, Olmstead v. U.S. (1928).) By 1967, in Katz v. U.S., the Court held that "the Fourth Amendment protects people, not places" (in that instance a person inside a public phone booth). Justice Harlan, in concurring, wrote that "there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable'" (the source of the "reasonable expectation of privacy" standard).

The problem, in the context of NSA collection of every American's mobile phone metadata, is that the Court has also held that once someone knowingly provides information to a third party, they can no longer claim a "reasonable expectation of privacy" with regard to that information. This was found to apply to the information bank customers give to their banks regarding their checking accounts, U.S. v. Miller (1976), and more to the point in this Klayman case, the information telephone customers provide their carriers (what was then the monopolist AT&T) regarding the phone numbers they call, or from which they receive calls. Smith v. Maryland (1979).

As I wrote this past June, contrasting the 1970s with 2013,

Today the combination of electronics, digitization, the Internet, computers and telecommunication result in your sharing a large portion of your "papers" with others. Neither librarians nor store owners used to keep records of what books or other merchandise you examined. Today you share a record of every search with Google, a record of every product you examine on a company's Web site, your Kindle book library with Amazon, your music choices with iTunes. You've shared your email and text messages with some company, your photos with Picasa and Facebook, your videos with YouTube, your documents with Dropbox or some other firm that offers you real estate in their "cloud." In addition to your bank, "your" financial records are held by your credit card companies, airlines, rental car companies, hotels, and many local merchants.

And that is essentially what Judge Leon had to say about the Smith case.

When do present-day circumstances -- the evolutions in the Government's surveillance capabilities, citizens' phone habits, and the relationship between the NSA and telecom companies -- become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that a precedent like Smith simply does not apply?

Klayman, pp. 43-45. He then responds to his own question, "The answer, unfortunately for the Government, is now." p. 45.

Has the Supreme Court ever made this kind of technological distinction before? He finds an example in U.S. v. Jones (2012), in which the Supreme Court distinguished the facts of that case (using a GPS device to trace Jones' movements for a month, which it found violated his "reasonable expectations of privacy") from U.S. v. Knotts (1983) (an earlier case in which the use of lesser technology for a shorter time was found acceptable). pp. 45-46.

Smith involved law enforcement using "pen register" and "trap and trace" techniques that collect limited data (numbers called, or calling), from one phone, during a limited time. What the NSA is doing involves more data (e.g., length of call, and possibly cell phone locations), from every telephone in America (and beyond), continuously (with daily updates), which it stores for five years, and can search in ways undreamed of when Smith was decided (1979).

Has Judge Leon "overruled" Smith? Not really. He has neither the power nor the need to do so. He is simply saying "the surveillance program now before me is so different from a simple pen register that Smith is of little value in assessing whether the Bulk Telephony Metadata Program constitutes a Fourth Amendment search. . . . I believe that . . . [it] almost certainly does violate a reasonable expectation of privacy. . . . Count the phones at the bus stop, in a restaurant, or around the table at a work meeting or any given occasion. Thirty-four years ago, none of those phones would have been there. Thirty-four years ago, city streets were lined with pay phones. Thirty-four years ago, when people wanted to send 'text messages,' they wrote letters and attached postage stamps." pp. 47, 52.

The tidal wave that's swept over us during this Century's technological tsunami has changed everything from family relations to foreign relations, from the way we do business to the way we teach school, from the nature of crime to the nature of war. The necessary response from lawyers and legislators has been lagging far behind what is needed. That is the context -- and the contrast -- in which Judge Leon's Klayman decision takes on its powerful and encouraging significance.

There are, of course, those who disagree with this approach. Sometimes I have responded, online when the comments are made in response to a newspaper's online article, or as appended remarks to the three items linked above. Because I continue to believe these are important issues, and those who seek to enter into a dialogue are entitled to some kind of response, I have reproduced, and added to, my responses in this new blog essay.

On Dec. 5, while advocating an increase in gasoline taxes, Nicholas Johnson makes the typical liberal error in assuming that increasing taxes will cure all the ills in the infrastructure. He would, I'm sure, say the same regarding taxes to fund education even while taxes spent on education has accelerated even while academic performance per student has plummeted.

We conservatives have no problem with taxes per se. The problem we have is with the plethora of irresponsible abuses of the public coffers. Where is the evidence that the gasoline taxes collected over the past half century has been spent wisely? A bit of transparency would be appreciated and might have a positive effect on the public resistance to tax increases. Of course, transparency could also work against any prospect of tax increases. With the public trust of government officials reaching new lows, it's not the best of times for politicians to be saying, "trust me with an increase in tax dollars."

Tax payers do not feel they are getting sufficient "bang for the buck." There are ways of getting big jobs done with very little. It's called management. The best example of the lack of it has been the current launching of Obamacare.

_______________

Steve Hufferd might be surprised to find the degree to which I agree with him -- as explained in these italicized comments, below:

I don't think that "increasing taxes will cure all the ills in the infrastructure [or] education." I don't recall ever saying that "the gasoline taxes [have] been spent wisely." (As a local school board member I often made the point in meetings, and newspaper columns, that some reforms both cost less and produce better results. As Hufferd puts it, "there are ways of getting big jobs done with very little.")

As a public official, and as a one-time administrative law professor, I have advocated more, not less, transparency in government.

I agree that "trust of government officials [is] reaching new lows" and that "trust me" no longer works.

I certainly share his commitment to better "management" -- and have ever since my term as U.S. Maritime Administrator during the mid-1960s (and throughout my term as a school board member). During President Lyndon Johnson's Administration we actually had a "War on Waste" program that saved taxpayers billions of dollars. (My contribution was working to reduce maritime subsidies.) Johnson symbolized the program by walking around the White House turning off needless lights -- thereby earning the nickname of "Lightbulb Lyndon." (I agree with Hufferd's criticism, and have said, that the rollout of Healthcare.gov was a classic example of poor management and oversight. "Exclusive: Insider Explains Healthcare.gov Fiasco; From 'Integration Testing' to 'Full End-to-End Testing,'" Nov. 2, 2013.)

So where do we part company?

(1) We have transportation needs. Unsafe bridges and deteriorating roads need to be fixed.

(2) There are limited options. (a) Continued crumble. We could continue to let the roads and bridges crumble, and build more detours around them. (b) Private ownership. We could sell them off to for-profit corporations -- with the tolls for driving far exceeding any gasoline taxes. (c) Different taxes. We could keep the roads public, but use different taxes: sales, property, or income -- shifting the entire burden away from the "user fee" and on to everyone. (d) Gas tax. We could continue to pay with the user fee called the gasoline tax -- hopefully, while applying Hufferd's and my focus on triage and "do we really need it," innovative cost-cutting, sound management, oversight, and increased transparency.

(3) Gas tax preference. Of these options, my preference is (d), Gas tax -- for reasons laid out in the Press-Citizen column, "Think Long and Hard Before Diluting the Gasoline Tax," Dec. 5. (Admittedly, non-drivers also benefit from our road network; thus, while I would not advocate some modest funding from income tax revenue, it would be difficult to argue persuasively against it.)

(4) We're all at fault. No institution (or individual) is free of the kind of inefficiencies, waste and abuses Hufferd and I would like to remedy -- whether corporations, the military, schools and universities, hospitals, non-profit organizations, religious institutions -- even political parties and their candidates' campaigns. It is misplaced to suggest that most of the fault, when it comes to government, falls on liberals or conservatives or libertarians or greens. Some are more willing to overlook waste in the military (billions of dollars in Iraq and Afghanistan that can't be accounted for); others less likely to come down on popular social programs. Corporate executives of companies dependent upon government contracts may complain about taxes, while spending millions on lobbyists and campaign contributions to get special tax breaks and other special interest benefits in return. (I've run numbers on the "return on investment" from campaign contributions. It's between 1000-to-one and 2000-to-one; give one million, get back one billion -- in the form of such things as contracts, tax breaks, antitrust exemptions, tariffs and other price supports.)

Local constituents, and their elected officials who campaign on reducing taxes, are among the first to squeal when a local defense contractor may lose a lucrative contract because the weapons system it's profiting from isn't wanted by the Pentagon, or just doesn't work.

So I don't think it is accurate, fair, or constructive to try to address these problems by demonizing one political party, or political movement, over another. On that Hufferd and I really do disagree.

Of course we don't want to pay for "bridges to nowhere" (a one-time Republican proposal), and we do want to have efficient and effective management of such necessary maintence projects as we may have, selected under rational systems of priority. Having said that, we're still left with the issue of how to pay for them. For the reasons I've outlined, I continue to believe the gasoline tax is the best way to do it.

Johnny Johnson December 03, 2013 at 05:46 PM
Hey why not? Energy prices consume a far greater share of income from middle class than the rich. Make those working fools cough up more and skip lunch to pay for it.

Johnny Johnson (no relation) is, of course, correct: as a percentage of their income, the poor and middle class pay more for gasoline (and its tax) than the rich. (And this disparity is exacerbated by the poor often having to rely on older, low gas mileage cars in less good condition, and possibly longer commutes.) But this could also be said about everything else in the marketplace (e.g., food, clothing, automobiles, housing, fines for speeding) -- with the exception of various discounts offered to "seniors" and very young children (categories not directly related to income) and public subsidies for food and housing for the poor. In my opinion, the most effective and easily administered solutions are to raise the minimum wage to "living wage" levels in the private sector, and get closer to full-employment policies by making the government the employer of last resort in the public sector -- rather than to single out the gasoline tax as a single item. -- N.J.

Brian December 04, 2013 at 07:16 PM
The State needs to cut costs, not raise revenue. Do the inefficiencies bother anyone else? Look at how many times I-80 has been redone Between Dodge Street & Coral Ridge last 10 years. What about the insane waste of money to replace the barrier between East & West with a "stained faux rock face". That was 1,000,000/mile. Just the labor to haul the existing barrier away required over 100 semi tractor trailers. Did anyone notice the stain faded in ONE WEEK? It wasn't UV stable. The State should be able to fund projects with existing gas tax.

Here again, Brian may be right (I'm not familiar with his facts). Everything possible should be done by those managing projects -- whether private sector or public sector -- to do jobs as efficiently and effectively as possible, at the lowest cost consistent with the necessary quality. Clearly, this is not a problem limited to public projects -- think about the BP Gulf oil rig disaster, the Massey Coal Mine disaster, the millions of cars and other products (including food) that must be recalled. But if we are going to continue to have a highway network that is smooth and safe we are going to have to continue to spend money on it. Trying to insure that money is spent as efficiently as possible is an essential goal; cancelling all highway projects because some are unwise or wasteful is not an option. -- N.J.

[I was one of those who commented on the Press-Citizen's editorial:]
Nicholas Johnson · Top Commenter
No one questions the need for roads and bridges in sufficiently good condition that cars and trucks can move safely and at reasonable speeds.
Few question that public construction, maintenance and funding is preferable to for-profit corporate ownership and operation.
The only remaining issue is what is the best formula for raising sufficient revenue -- and most fairly allocating the burden among Americans.
As today's editorial explains, the gasoline tax wins that one hands down. For even more discussion of the reasons why, along with additional benefits of this approach, see "Paying By The Mile Is A Terrible Idea; The Gasoline Tax Is Our Friend," http://fromdc2iowa.blogspot.com/2013/09/paying-by-mile-is-terrible-idea.html
December 2 at 7:49am

Mike Thayer · Follow · Top Commenter · Works at Coralville Courier
This is intellectually lazy thinking by the PC. It's easy to say, "Raise taxes." But the REAL answer is finding areas in other state government spending where $215 million can be cut and re-allocated to roads/infrastructure.
December 2 at 8:49am

Here again, I agree that everything possible should be done to evaluate taxpayer-funded federal, state, county, and city projects. Are they worth doing at all? What's the benefit-cost analysis? Those that have public support, still make sense, and that return multiples of what they cost should probably receive more money than they presently get. Some are probably funded at a more or less appropriate level. Those that have outlived their usefulness should be investigated further to see if they should be closed out. To put the cost of highway maintenance on all Iowa taxpayers -- rather than just those who drive and buy gas -- is, of course, an option, and one that some people in addition to Mike Thayer are advocating. For the reasons laid out in the column that begins this blog essay, I believe the multiple benefits and rationale for funding roads from a gasoline tax is a better option. -- N.J.

Lynn Griebahn Jr. · Top Commenter · University of Iowa
Yes! someone needs to be the adult here, democrats NEVER think about the waste in spending,
December 2 at 11:21am

As a wise wag once put it, "'Always' and 'never' are two words we should always remember never to use." Some Democrats and Republicans seem to care more about wise use of public money than other Democrats and Republicans -- a bloated defense budget, earmarks and tax breaks for special interests. Members of both parties seem somewhat reluctant to specify which specific programs they would eliminate. Indeed, they are so fond of suggesting that the elimination of "waste, fraud and abuse" will solve our budget challenges (when of course, however desirable, that's not the magic solution) that it's always seemed to me they think and talk about "waste" (in general) rather than "projects value" (in particular) far more than they should. -- N.J.

Michael Hoback · Top Commenter
The feds are also considering raising their gas tax using the same plea as Iowa. The DOT has used the same claim of shortfalls, every legislative session for at least the twenty years I have been paying attention. The fact is that if you gave them every tax dollar in the state they would still want more.
December 4 at 10:45am

On the assumption this is true, it is a call for oversight and better management -- something I certainly support. The more we can conduct a triage among potential road building and repair projects by engineers on the basis of rational analysis and professional judgment, and the less we can rely on politicians choosing projects on the basis of contractors' campaign contributions and short term construction jobs for their constituents, the better. -- N.J.

The following comment was posted to the online version of my Dec. 5 Press-Citizen column:

My response would be similar to many of those above. See, e.g., my numbered paragraphs (1) through (4) in the response to Steve Hufferd's Letter, at the top of this blog essay, and to Mr. Hoback's other comment, immediately above this one.

_______________

And my son, Sherman, has sent the following comment regarding this blog essay by email:

If you do a follow-up you might touch on 2 related topics:

1) Tolls and HOT lanes (aka "Lexus Lanes").

2) Gas tax refunds/credits for poor and working class folks, as well as those who must drive lower mileage vehicles and/or long distances out of necessity.

WRT #1 -- tolls and Lexus lanes are grossly regressive and, I would say, un-American. Since when do we segregate users of public infrastructure into the "haves" and "have-nots"? Our parks, libraries, and schools are available for everyone to use and enjoy. The same used to be true of our public roads and Interstate highway system. Not any more. Now it's 'pay up or shut up'.

Charging an extra fee or toll to use certain lanes on a public road -- particularly an exorbitant per mile 'HOT lane' charge that is admittedly _designed_ to keep out the 'riff-raff' (aka the 99%) -- is outrageous. Our highways are not some exclusive private dinner club. They should be open for ALL to use. Ordinary folks who cannot afford to pay the fees should not have to sit in traffic for hours and breathe exhaust fumes while the wealthy speed past them in their German luxury sedans. If the infrastructure is inadequate it should be improved. HOT/Lexus lanes are an elitist band-aid, and one that takes pressure off of legislators to actually _do_ something about roads with inadequate capacity. If the rich & powerful can buy their way out of traffic jams then they'll be happy and not press for road improvements.

OT/Lexus lanes are the equivalent of having two (2) sections in public libraries and/or schools. One section of the library for the well-healed who can afford to pay a user fee with shiny new computers and an extensive collection of books, comfy chairs, plenty of staff, etc, and the other just a bare-bones barely adequate room with old slow computers and maybe some box fans instead of A/C in the summer. Or a school split into two sections -- one with some classrooms that have a new computer for every kid, a teacher for every 10 students, and an indoor olympic size swimming pool vs. another section with classes of 30+ and some old textbooks on the other side of the building -- for the unwashed masses, the kids from poor and working class families.

Tolls and Lexus lanes are completely unacceptable. They are immoral and should be eliminated. Raise the gas tax instead.

2) Of course, even the motor fuel tax is regressive. Some people _must_ drive long distances. They aren't out joy riding, they have no choice. Out here in the D.C./Baltimore area (and most other major metro areas) people do not usually choose to live 30-50 miles from where they work -- it is the only way they can afford to live. People do not always have the money to buy a new (or used) car that gets 40 mpg. Maybe a relative gave them an old sedan that gets 18-20 mpg and they can barely afford the maintenance on it. Many farmers and ranchers must drive big pickup trucks and have no choice but to drive long distances. The same with construction workers, etc. You get the idea. It is not right to punish them for situations which are beyond their control.

Everything being equal -- income, required driving distance, vehicles needed -- then this would be easier. If no one really had to drive at all, or, say, no more than 10 miles per day, and everyone could afford an electric car, hybrid, or ultra-high mileage car that would suit their needs, then slamming them with a big fat fuel tax for driving a full-size crew cab dually pickup truck with a huge V-8 gas-sucking engine -- 'just because', for the "image" -- would make perfect sense.

Unfortunately it's not that simple.

Perhaps the gas tax should be set up like our income tax system (only simpler). The IRS recognizes that $50k/year is not the same from one person to the next. Some people have legitimate business expenses that are deductable for good reason. For example, it would not be fair to tax an independent cab driver on the entire amount he/she earns (their gross income), because they have to pay for fuel, maint., repairs, and license fees out of that. Likewise, it does not seem fair to a) have a flat tax (which the gas tax kinda is) and b) not allow any deductions for lower income folks and those who absolutely must drive long distances and/or lower mileage vehicles.

I rest my case. ;-)

_______________

This morning [Dec. 11] I discovered this Baltimore Sun editorial on the subject. It's not critical of the gas tax, quite the contrary. But I thought it sufficiently well reasoned to be worth adding here:

Ah, to be in the U.S. economy of 1990s, a decade when the gross domestic product grew by about one-third and unemployment dropped from 7.5 percent to 4 percent. In 1993, the federal government raised the tax on gasoline to 18.4 cents per gallon, an increase of more than 30 percent from the previous year, and business boomed.

Since then, the cost of a gallon of unleaded gasoline has more than doubled, yet the per-gallon federal excise tax has remained unchanged. States have raised their fuel taxes to keep up as best they can with local transportation needs, but the federal government's source of revenue has stagnated, a problem worsened by the fact that people are driving less and using more fuel efficient vehicles.

The result? The Highway Trust Fund has run dry, and the nation's transportation infrastructure has suffered. To simply keep up with basic needs, Congress has been forced to supplement it with billions of general tax dollars — money that might have otherwise been used to pay down the debt, offset sequestration cuts or fund other myriad priorities.

In the House this week, a bill was introduced that would raise the tax by 15 cents per gallon. That would, more or less, allow the tax to at least keep up with inflation (falling a bit short as a percentage of fuel costs). It has been endorsed by AAA, and it's a safe bet that many in the business community, in the labor unions and local government would like to see it approved as well. Reducing congestion and keeping up the transportation network is vital to the economy.

Yet it's also safe to assume the bill has absolutely no chance in the GOP-controlled chamber. So inviolate is their no-tax pledge that conservatives would rather see the nation's economy wither than be caught raising a tax that is so obviously in need of updating.

This is a classic case of cutting off one's nose to spite one's face. Critics can point to transportation dollars that have been wasted, allegedly, on projects that are under-used or built too elaborately or required their contractors to pay their workers a living wage. But collectively, such waste (and we use that term loosely since many of these complaints are misplaced) is negligible, even microscopic, compared to the enormous transportation needs.

According to the American Society of Civil Engineers, the U.S. needs to invest about $2.7 trillion in transportation and other infrastructure by 2020 if the nation is to remain globally competitive. Yet the federal trust fund has become so depleted that experts say it won't be able to meet existing obligations in 2015, let alone take on new projects.

To leave the next generation a pot-hole strewn, overcrowded and unworkable transportation system would be as disastrous and as economically crippling as any budget deficit. And, as history has demonstrated, raising fuel taxes does not kill jobs. Indeed, most industrialized nations tax fossil fuels at a much higher rate.

One can argue that in the future, the U.S. must gravitate toward a system of financing transportation that is not so dependent on gas taxes, perhaps one that taxes by miles traveled instead of fuel consumed. As a recent U.S. Public Interest Group report notes, Americans are driving less and depending on public transportation more — yet we don't have the resources to accommodate this transition.

It's also reasonable to look for more public-private partnerships and other creative ways to finance airports, ports, highways, trains, light rail and other modes of travel in the future. But that is not nearly enough. The bottom line is that the country is already falling behind, and realistically, raising the federal gas tax must be part of the equation.

Would raising the tax also increase the cost of fuel? Absolutely, but that's not necessarily a bad thing. As studies have shown, getting stuck in traffic is even more costly, and Americans are doing a lot of that these days. As a recent Texas A&M Transportation Institute study found, congestion is already costing the average American an extra $818 per year. As distasteful as raising gasoline costs may sound, it's a lot better than the alternative of neglecting the roads, bridges and rails — or expecting some other miracle to come along.

Thursday, December 05, 2013

Think Long and Hard Before Diluting the Gasoline Tax
Nicholas Johnson
Iowa City Press-Citizen
December 5, 2013, p. A7

As children, we used to sing "London Bridge Is Falling Down." That was fantasy. We'd never heard of a bridge falling down.

Now we have.

Why won't Gov. Branstad advocate an increased gas tax?

No one questions the need for safe, smooth roads and bridges.

Few question public ownership and maintenance. It sure beats private ownership by profit-maximizing corporations.

The only remaining issue? How to pay for it? As an earlier [Dec. 2] Press-Citizen editorial explained, the gasoline tax wins that one hands down.

We'll either pay for roads and bridges or we won't have them. But for a gasoline tax to pick up the tab, it must take account of inflation and current needs.

Politicians who run and vote against "government," encourage the notion taxes are evil. Taxes are just another way to buy stuff we need - like roads.
Taxes are often the most efficient and equitable way to pay.

Proposed alternatives, such as the mileage tax or using other State funds, are little more than a shell and pea game to enrich the oil and automobile industries.

The gas tax is a "user fee." The more you drive, the more gasoline you buy, the more tax you pay, and the more you contribute to the maintenance of the roads you use.

There are many reasons why the gasoline tax is not creating enough revenue.
Mostly it's the failure to adjust for inflation.

But it's also a good news, bad news story.
The good news: the price of gas (with its tax) stimulates (1) higher gas mileage cars and trucks, (2) hybrids, and (3) electric vehicles (along with some other alternatives) -- all of which use less gas per mile than cars when the tax was last set.

As a result, we are both emitting fewer greenhouse gases, and less dependent on foreign oil.

The bad news: the less gas we use, the less gas tax revenue, the less money we have for roads and bridges.

So why not abandon, or supplement, the gas tax? Because doing so reduces the marketplace incentives for better gas-mileage vehicles. Raising the tax increases those incentives.

For example, paying tax by the mile (instead of by the gallon) there's no tax incentive not to drive a spiffy Hummer (some models get 9 mpg in city) or inefficient old vehicles. You'll still pay the mileage fee, and more per mile for gas, but no additional gas tax.

Grim reality: we'll either pay for our paved roads or go back to driving on the dirt roads of my youth. Road maintenance costs are more than before. One way or another we're going to pay. That's not the issue. Increasing gas taxes is not an additional outlay that could have been avoided; it's just the best way of paying for it.

My proposal?

Continue to fund road and bridge construction and maintenance with gasoline taxes. Raise the tax rate to whatever's necessary.

Give the more efficient, alternatively-fueled vehicles the gas tax advantages of better gas mileage. Provide what's needed by any new, socially beneficial technology when trying to change culturally embedded habits (such as battery recharging stations for electrics). This is similar to the boost we gave everything from the railroads to the Internet during their early years.

Once the alternative vehicles industries are profitable enough, design any one of a number of possible approaches for collecting a road user fee from them as well.

But, please, think long and hard before abandoning, or diluting, the gasoline tax. Let's not wake up to discover that, "You don't know what you've got until it's gone."
_______________
Nicholas Johnson teaches at the University of Iowa College of Law and maintains www.nicholasjohnson.org and FromDC2Iowa.blogspot.com.

Johnny Johnson December 03, 2013 at 05:46 PM
Hey why not? Energy prices consume a far greater share of income from middle class than the rich. Make those working fools cough up more and skip lunch to pay for it.

Johnny Johnson (no relation) is, of course, correct: as a percentage of their income, the poor and middle class pay more for gasoline (and its tax) than the rich. (And this disparity is exacerbated by the poor often having to rely on older, low gas mileage cars in less good condition, and possibly longer commutes.) But this could also be said about everything else in the marketplace (e.g., food, clothing, automobiles, housing, fines for speeding) -- with the exception of various discounts offered to "seniors" and very young children (categories not directly related to income) and public subsidies for food and housing for the poor. In my opinion, the most effective and easily administered solutions are to raise the minimum wage to "living wage" levels in the private sector, and get closer to full-employment policies by making the government the employer of last resort in the public sector -- rather than to single out the gasoline tax as a single item. -- N.J.

Brian December 04, 2013 at 07:16 PM
The State needs to cut costs, not raise revenue. Do the inefficiencies bother anyone else? Look at how many times I-80 has been redone Between Dodge Street & Coral Ridge last 10 years. What about the insane waste of money to replace the barrier between East & West with a "stained faux rock face". That was 1,000,000/mile. Just the labor to haul the existing barrier away required over 100 semi tractor trailers. Did anyone notice the stain faded in ONE WEEK? It wasn't UV stable. The State should be able to fund projects with existing gas tax.

Here again, Brian may be right (I'm not familiar with his facts). Everything possible should be done by those managing projects -- whether private sector or public sector -- to do jobs as efficiently and effectively as possible, at the lowest cost consistent with the necessary quality. Clearly, this is not a problem limited to public projects -- think about the BP Gulf oil rig disaster, the Massey Coal Mine disaster, the millions of cars and other products (including food) that must be recalled. But if we are going to continue to have a highway network that is smooth and safe we are going to have to continue to spend money on it. Trying to insure that money is spent as efficiently as possible is an essential goal; cancelling all highway projects because some are unwise or wasteful is not an option. -- N.J.

[I was one of those who commented on the Press-Citizen's editorial:]
Nicholas Johnson · Top Commenter
No one questions the need for roads and bridges in sufficiently good condition that cars and trucks can move safely and at reasonable speeds.
Few question that public construction, maintenance and funding is preferable to for-profit corporate ownership and operation.
The only remaining issue is what is the best formula for raising sufficient revenue -- and most fairly allocating the burden among Americans.
As today's editorial explains, the gasoline tax wins that one hands down. For even more discussion of the reasons why, along with additional benefits of this approach, see "Paying By The Mile Is A Terrible Idea; The Gasoline Tax Is Our Friend," http://fromdc2iowa.blogspot.com/2013/09/paying-by-mile-is-terrible-idea.html
December 2 at 7:49am

Mike Thayer · Follow · Top Commenter · Works at Coralville Courier
This is intellectually lazy thinking by the PC. It's easy to say, "Raise taxes." But the REAL answer is finding areas in other state government spending where $215 million can be cut and re-allocated to roads/infrastructure.
December 2 at 8:49am

Here again, I agree that everything possible should be done to evaluate taxpayer-funded federal, state, county, and city projects. Are they worth doing at all? What's the benefit-cost analysis? Those that have public support, still make sense, and that return multiples of what they cost should probably receive more money than they presently get. Some are probably funded at a more or less appropriate level. Those that have outlived their usefulness should be investigated further to see if they should be closed out. To put the cost of highway maintenance on all Iowa taxpayers -- rather than just those who drive and buy gas -- is, of course, an option, and one that some people in addition to Mike Thayer are advocating. For the reasons laid out in the column that begins this blog essay, I believe the multiple benefits and rationale for funding roads from a gasoline tax is a better option. -- N.J.

Lynn Griebahn Jr. · Top Commenter · University of Iowa
Yes! someone needs to be the adult here, democrats NEVER think about the waste in spending,
December 2 at 11:21am

As a wise wag once put it, "'Always' and 'never' are two words we should always remember never to use." Some Democrats and Republicans seem to care more about wise use of public money than other Democrats and Republicans -- a bloated defense budget, earmarks and tax breaks for special interests. Members of both parties seem somewhat reluctant to specify which specific programs they would eliminate. Indeed, they are so fond of suggesting that the elimination of "waste, fraud and abuse" will solve our budget challenges (when of course, however desirable, that's not the magic solution) that it's always seemed to me they think and talk about "waste" (in general) rather than "projects value" (in particular) far more than they should. -- N.J.

Michael Hoback · Top Commenter
The feds are also considering raising their gas tax using the same plea as Iowa. The DOT has used the same claim of shortfalls, every legislative session for at least the twenty years I have been paying attention. The fact is that if you gave them every tax dollar in the state they would still want more.
December 4 at 10:45am

On the assumption this is true, it is a call for oversight and better management -- something I certainly support. The more we can conduct a triage among potential road building and repair projects by engineers on the basis of rational analysis and professional judgment, and the less we can rely on politicians choosing projects on the basis of contractors' campaign contributions and short term construction jobs for their constituents, the better. -- N.J.

The following comment was posted to the online version of my Dec. 5 Press-Citizen column:

On Dec. 5, while advocating an increase in gasoline taxes, Nicholas Johnson makes the typical liberal error in assuming that increasing taxes will cure all the ills in the infrastructure. He would, I'm sure, say the same regarding taxes to fund education even while taxes spent on education has accelerated even while academic performance per student has plummeted.

We conservatives have no problem with taxes per se. The problem we have is with the plethora of irresponsible abuses of the public coffers. Where is the evidence that the gasoline taxes collected over the past half century has been spent wisely? A bit of transparency would be appreciated and might have a positive effect on the public resistance to tax increases. Of course, transparency could also work against any prospect of tax increases. With the public trust of government officials reaching new lows, it's not the best of times for politicians to be saying, "trust me with an increase in tax dollars."

Tax payers do not feel they are getting sufficient "bang for the buck." There are ways of getting big jobs done with very little. It's called management. The best example of the lack of it has been the current launching of Obamacare.

Steve Hufferd might be surprised to find the degree to which I agree with him.

I don't think that "increasing taxes will cure all the ills in the infrastructure [or] education." I don't recall ever saying that "the gasoline taxes [have] been spent wisely." (As a local school board member I often made the point in meetings, and newspaper columns, that some reforms both cost less and produce better results. As Hufferd puts it, "there are ways of getting big jobs done with very little.")

As a public official, and as a one-time administrative law professor, I have advocated more, not less, transparency in government.

I agree that "trust of government officials [is] reaching new lows" and that "trust me" no longer works.

I certainly share his commitment to better "management" -- and have ever since my term as U.S. Maritime Administrator during the mid-1960s (and throughout my term as a school board member). During President Lyndon Johnson's Administration we actually had a "War on Waste" program that saved taxpayers billions of dollars. (My contribution was working to reduce maritime subsidies.) Johnson symbolized the program by walking around the White House turning off needless lights -- thereby earning the nickname of "Lightbulb Lyndon." (I agree with Hufferd's criticism, and have said, that the rollout of Healthcare.gov was a classic example of poor management and oversight.)

So where do we part company?

(1) We have transportation needs. Unsafe bridges and deteriorating roads need to be fixed.

(2) There are limited options. (a) Continued crumble. We could continue to let the roads and bridges crumble, and build more detours around them. (b) Private ownership. We could sell them off to for-profit corporations -- with the tolls for driving far exceeding any gasoline taxes. (c) Different taxes. We could keep the roads public, but use different taxes: sales, property, or income -- shifting the entire burden away from the "user fee" and on to everyone. (d) Gas tax. We could continue to pay with the user fee called the gasoline tax -- hopefully, while applying Hufferd's and my focus on triage and "do we really need it," innovative cost-cutting, sound management, oversight, and increased transparency.

(3) Gas tax preference. Of these options, my preference is (d), Gas tax -- for reasons laid out in the Press-Citizen column, "Gasoline Tax Is Our Friend," Dec. 5. (Admittedly, non-drivers also benefit from our road network; thus, while I would not advocate some modest funding from income tax revenue, it would be difficult to argue persuasively against it.)

(4) We're all at fault. No institution (or individual) is free of the kind of inefficencies, waste and abuses Hufferd and I would like to remedy -- whether corporations, the military, schools and universities, hospitals, non-profit organizations, or religious institutions. It is misplaced to suggest that most of the fault, when it comes to government, falls on liberals or conservatives or libertarians or greens. Some are more willing to overlook waste in the military (billions of dollars in Iraq and Afghanistan that can't be accounted for); others less likely to come down on popular social programs. Corporate executives of companies dependent upon government contracts may complain about taxes, while spending millions on lobbyists and campaign contributions to get special tax breaks and other special interest benefits in return. (I've run numbers on the "return on investment" from campaign contributions. It's between 1000-to-one and 2000-to-one; give one million, get back one billion -- in the form of such things as contracts, tax breaks, antitrust exemptions, tariffs and other price supports.)

Elected officials who campaign on reducing taxes -- and their local constituents -- are among the first to squeal when a local defense contractor may lose a lucrative contract because the weapons system it's profiting from isn't wanted by the Pentagon, or just doesn't work.

So I don't think it is accurate, fair, or constructive to try to address these problems by demonizing one political party, or political movement, over another. On that Hufferd and I really do disagree.

Of course we don't want to pay for "bridges to nowhere" (a one-time Republican proposal), and we do want to have efficient and effective management of such necessary maintence projects as we may have, selected under rational systems of priority. Having said that, we're still left with the issue of how to pay for them. For the reasons I've outlined, I continue to believe the gasoline tax is the best way to do it.

# # #

And my son, Sherman, has sent the following comment regarding this blog essay by email:

If you do a follow-up you might touch on 2 related topics:

1) Tolls and HOT lanes (aka "Lexus Lanes").

2) Gas tax refunds/credits for poor and working class folks, as well as those who must drive lower mileage vehicles and/or long distances out of necessity.

WRT #1 -- tolls and Lexus lanes are grossly regressive and, I would say, un-American. Since when do we segregate users of public infrastructure into the "haves" and "have-nots"? Our parks, libraries, and schools are available for everyone to use and enjoy. The same used to be true of our public roads and Interstate highway system. Not any more. Now it's 'pay up or shut up'.

Charging an extra fee or toll to use certain lanes on a public road -- particularly an exorbitant per mile 'HOT lane' charge that is admittedly _designed_ to keep out the 'riff-raff' (aka the 99%) -- is outrageous. Our highways are not some exclusive private dinner club. They should be open for ALL to use. Ordinary folks who cannot afford to pay the fees should not have to sit in traffic for hours and breathe exhaust fumes while the wealthy speed past them in their German luxury sedans. If the infrastructure is inadequate it should be improved. HOT/Lexus lanes are an elitist band-aid, and one that takes pressure off of legislators to actually _do_ something about roads with inadequate capacity. If the rich & powerful can buy their way out of traffic jams then they'll be happy and not press for road improvements.

OT/Lexus lanes are the equivalent of having two (2) sections in public libraries and/or schools. One section of the library for the well-healed who can afford to pay a user fee with shiny new computers and an extensive collection of books, comfy chairs, plenty of staff, etc, and the other just a bare-bones barely adequate room with old slow computers and maybe some box fans instead of A/C in the summer. Or a school split into two sections -- one with some classrooms that have a new computer for every kid, a teacher for every 10 students, and an indoor olympic size swimming pool vs. another section with classes of 30+ and some old textbooks on the other side of the building -- for the unwashed masses, the kids from poor and working class families.

Tolls and Lexus lanes are completely unacceptable. They are immoral and should be eliminated. Raise the gas tax instead.

2) Of course, even the motor fuel tax is regressive. Some people _must_ drive long distances. They aren't out joy riding, they have no choice. Out here in the D.C./Baltimore area (and most other major metro areas) people do not usually choose to live 30-50 miles from where they work -- it is the only way they can afford to live. People do not always have the money to buy a new (or used) car that gets 40 mpg. Maybe a relative gave them an old sedan that gets 18-20 mpg and they can barely afford the maintenance on it. Many farmers and ranchers must drive big pickup trucks and have no choice but to drive long distances. The same with construction workers, etc. You get the idea. It is not right to punish them for situations which are beyond their control.

Everything being equal -- income, required driving distance, vehicles needed -- then this would be easier. If no one really had to drive at all, or, say, no more than 10 miles per day, and everyone could afford an electric car, hybrid, or ultra-high mileage car that would suit their needs, then slamming them with a big fat fuel tax for driving a full-size crew cab dually pickup truck with a huge V-8 gas-sucking engine -- 'just because', for the "image" -- would make perfect sense.

Unfortunately it's not that simple.

Perhaps the gas tax should be set up like our income tax system (only simpler). The IRS recognizes that $50k/year is not the same from one person to the next. Some people have legitimate business expenses that are deductable for good reason. For example, it would not be fair to tax an independent cab driver on the entire amount he/she earns (their gross income), because they have to pay for fuel, maint., repairs, and license fees out of that. Likewise, it does not seem fair to a) have a flat tax (which the gas tax kinda is) and b) not allow any deductions for lower income folks and those who absolutely must drive long distances and/or lower mileage vehicles.

Wednesday, December 04, 2013

"Coming of Age in Chore Boots" is a definite must-see, fantastic performance. Fortunately for you, if you're reading this before December 8th and you act quickly, you may still have an opportunity to see it at Iowa City's Riverside Theater. Here's the basic info:

Other portions of his review ring true with what I came away with after her Saturday night [Nov. 30] performance:

Janet Schlapkohl connects her personal story with key events, ranging from the local to the international, in her one-woman show, “Coming of Age in Chore Boots” [which] is heartwarming and humorous, while addressing serious issues including the plight of young men sent to Vietnam and the farm crisis of the 1980s . . . highlight[ing] how the wider world can intrude on one’s individual story, even if one isn’t attending to much beyond one’s own sphere. . . .

The highlight of the first act is an extended sequence in which Schlapkohl interweaves her story of serving as a bat girl for the high school softball team with reflections on the Vietnam conflict . . . artfully contrast[ing] the battlefield of sport with the very real battlefields young soldiers encountered. It’s a beautifully written sequence that Schlapkohl performs with an appealing earnestness that nevertheless calls to the fore the high cost of war on scales both large and small. . . .

Schlapkohl had the capacity audience laughing with her portrayal of all four characters (including herself) at a monthly meeting of farm wives–a group into which she herself did not comfortably fit. Her depiction of preparations for and attendance at a department party after she and her husband returned to school was also quite funny. In between these moments, she delivered the somber story of the loss of the farm she and her husband had struggled to keep going. . . .

The show is dotted with humorously employed song clips that emphasize key moments. The device is handled well, and never detracts from Schlapkohl’s own storytelling, which is, by and large, exceptional.

The Trailer

Here is a brief YouTube trailer with Janet's description of the play.

Riverside Theatre's Comments

Here's Riverside Theater's description of the play, and Janet Schlapkohl:

Janet Schlapkohl, writer, director and frequent Walking the Wire performer shares her memories of growing up in the Midwest. Stories both hilarious and poignant emerge—from the local characters of the Wapsi Women’s Club, back-to-the-landers and early Lamaze advocates, to Vietnam and the farm crisis. A world premiere.

Janet Schlapkohl received her M.F.A. in Playwriting from the University of Iowa. She also has an M.S. in Education from the University of Iowa and a B.S. in Biology with minors in English, Chemistry, and Education from Iowa State University. She is the founder of Combined Efforts Theatre, director of Country Camp, LLC and the recipient of the Isabelle Turner Human Rights Award, the Richard Maibaum Award, and the Finkbine Award for Human Rights. She is an Adjunct Professor at the University of Iowa.

Her plays have been produced in New York City, Los Angeles, Colorado, and across Iowa. She has performed her monologues and one woman shows at Riverside Theatre in Iowa City and at the Looby Theatre in Nashville. She has also worked as a Director, a Dramaturge, a Scenic Artist, and a Costume Designer.

Corporate Art vs. Local Artists

So my comments are less those of the theater critics and more in the nature of a hymn to the members of Iowa City's creative community in general and this woman in particular.

One of the consequences of corporate control of art and entertainment is the creation of profit-maximizing celebrity -- the stars of TV and film, top earning music groups and graphic artists, the publicized athletes. The publisher, Alfred Knopf, used to publish worthy writers' first novels, knowing he'd lose money on them. Today's major media are primarily interested in authors whose well-advertised books can sell millions of copies, and actors whose films will gross well over $100 million.

This system has served us in some ways, and it certainly has served the CEOs and shareholders of our media conglomerates ("'All the gold in California'/Is in a bank in the middle of Beverly Hills/In somebody else's name"). But it has also created a false linkage between profit and talent, and in so doing has diminished the credit of those who have every bit of the raw talent (and sometimes more) than the celebrities but none of their publicity (or income).

Janet Schlapkohl

Virtually every form of artistic creativity can be found within the population of Eastern Iowa and Iowa City -- graphic arts and sculpture, film making and television, pottery and jewelry, writing and music of all kinds, photography, and more.

And Janet Schlapkohl is a major force in that creative community.

"Coming of Age in Chore Boots," is only the latest example of her work. It's certainly as good or better than much of the off-Broadway theater I've seen in New York over the years, even though you probably won't read about it in the New York Times or see her featured on CBS' "60 Minutes."

Janet is one of our own. As a former special education teacher at City High, she saw how beneficial theater performance could be for her students, and by 2002 had created "Combined Efforts Theater" -- "Iowa’s only Theatre Company with a mission to purposefully include actors with and without disabilities." Since then Combined Efforts has continued to grow, with ever-larger audiences, appreciative parents and actors, its own Section 501(3)(c) tax status, sprouting Men's Choir and Dance Troupes, and most recently the recipient of a Kennedy Center (Washington, D.C.) contract to teach a play writing class to local-area students, including those with disabilities. Along the way, she managed to pick up a masters in education and an MFA in play writing, while running a summer camp, helping with grandchildren, and managing a farm with her veterinarian husband, Dave.

Ever since, as a small boy, I read a books about Thomas Jefferson and Winston Churchill that emphasized the wide range of their talents and accomplishments (Churchill, the book said, had once built a brick wall), I have been fascinated by such people. Locally, the former UI president, David Skorton (now president at Cornell University), was such a person. An MD who continued his practice and research, he was abundantly qualified to hold the positions he did in the Colleges of Medicine and Engineering, as well as the Department of Computer Science. He was an accomplished performer on the saxophone and flute (having worked in Chicago as a professional jazz and R&B musician), hosted a radio program about jazz, and served on the Cedar Rapids Symphony Orchestra Board of Directors -- all while functioning as a major university president. Most amazing to me was his practice of personally answering all of his email each day. (I'm currently 250 emails behind.) I could go on with more, but you get the idea.

This is one of the many qualities that I admire in Janet. "Coming of Age in Chore Boots" displays a small range of her vast and various abilities. For starters, she researched and wrote the play -- one I would like to read sometime, if she would let me. It's also really good writing. Moreover, knowing her, I would not be surprised if she had more than a little to say about everything from the set design to the lighting, blocking, directing and costumes.

Once on stage, she not only displays her ability as an accomplished actor, but does her share of singing and dancing, moving gracefully around the stage, and keeping us laughing -- along with, as we say, "playing all the parts," complete with accents and rapid costume changes.

And don't forget, this is a "one-woman show." Have you ever tried to memorize anything longer than a sentence or paragraph or two? Have you ever had to learn your lines in a play? With other actors to work off of, and an occasional line, it's possible to memorize and get through it. But all alone? And throughout a two-act play for an hour or two? (Our Actors Equity son, Jason Grubbe, did a one-man, 90-minute-no-intermission show about Shakespeare's last day.) How anybody can do this is so far beyond my imagination, let alone ability, that I just sit there in awe when it happens.

And how does she manage to turn out those plays?

President Kennedy told a story about his experience as a senator, dealing with Senator Warren Magnuson, from the state of Washington. He said Maggie (as he was called) would go down into the well of the Senate chamber, where he would mumble something. Kennedy would later ask what he'd said, and "Maggie would reply, 'Oh, nothing,' and the next think you'd know the Grand Coulee Dam was built."

You ask Janet, "What are you doing?" "Oh, nothing," she says; "I should start working on the summer play" (a reference to the ". . . At the County Fair" series). You see her three or four days later and she hands you a 60-page script. And it's good! It reflects considerable research. And equally amazing, when additional youngsters come along who'd like to participate, it's almost instantaneously revised, and they are written into the script with a part to play.

"Coming of Age in Chore Boots" and "The Iowa Story"

So what's so special about her "Coming of Age in Chore Boots"?

"Let me count the ways."

I've already noted that it's delightful entertainment -- funny, poignant -- a wonderful evening in the theater; a great story, well acted, with music. But that would be true of other plays she's written.

This one really is her story, her farm experiences, her "chore boots." And she's really captured it.

For anyone my age, anyone who experienced an Iowa family farm during any time between the 1930s and 1950s, "Chore Boots" is a wonderful, warm walk down memory lane. I am so thankful for being born when I was, and being exposed to life on my uncle's farm during the 1930s and '40s.

It's always seemed to me there probably wasn't that much difference between Iowa family farm life in the 1930s and the 1830s -- windmills and pumps for water, outhouses and a pot under the bed instead of indoor plumbing, a kitchen stove to heat the house in winter, root cellars, literal "horse power" to pull the wagons instead of tractors, corn picked by hand, manure spreaders instead of commercial fertilizers, kerosene lanterns for light, a hand cranked milk separator. It was what we called "mixed agriculture" -- oats and alfalfa for the animals, which included horses, cattle, hogs, sheep, chickens, milk cows, and the occasional goat. Gardens provided most of the fruit and vegetables, fresh during the growing season and canned for the winter months. There were real chores -- and the boots to go with them. Kids who grew up on those farms learned how to work, rising early to do chores before breakfast and heading off to school on foot or school bus.

Janet has captured this with hundreds of references, what folks were talking about and how they expressed it, acting it out, telling the story.

It's a story that every Iowan should hear and know, and perhaps especially the young, who have only seen farms from a car window while speeding along an Interstate, and assume farmers have always farmed multiple sections of land, in nothing but corn and beans, with GPS-navigated tractors costing $100-500,000.

Janet Schlapkohl's "Coming of Age in Chore Boots" is the most delightful way I can imagine of hearing that story.

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Personal View

This blog is neither affiliated with the University of Iowa nor hosted by it. It is maintained by Nicholas Johnson in his individual capacity. Nothing posted here should be construed as anything other than the personal views of the author.